ABDUL SULTAN HUSSAINBHAI VELJI Vs. COLLECTOR OF AHMEDNAGAR

JUDGEMENT

(1.) IN these two cases the question that arises is whether in an appeal against an award made in a land acquisition reference court fee on the amount of 15 per cent solatium payable on the award that may be made by the appellate Court must be paid by the Appellant.

(2.) THE facts of the case in C. R. A. 185 of 1967 are given in my referring judgment dated July 27, 1967. The question depends upon the construction of relevant provisions of the Court-fees Act and the Land Acquisition Act, Section 7 of the Court-fees Act consists of two sub-section, sub-section (2) not being relevant. Sub-section (1) reads as follows: " (1) The amount of fee payable under this Act on a memorandum of appeal against an order relating to compensation under any Act for the time being in force for the acquisition of land for public purposes shall be computed according to the difference between the amount awarded and the amount claimed by the appellant. " all the authorities indicate that this section is a computing section or a section which lays down the method of computation of the value of the appeal while the charging provisions are contained in the Schedules to the Act. This view has been taken by reason of the language of S. 5, which requires that on a document, which is filed before a public officer or a court of justice, the court fees stamp of an amount of not less than that indicated by the said schedules as the proper fee has been paid. Coming home, see the decisions in Ganesh Gopal Shembekar v. Moreshwar Narayan Date, 53 LR 310= (AIR 1951 Bom 352) and Hirji Virji Janbari v. The Government of Bombay, 47 Bom LR 327= (AIR 1945 Bom 348 ). (2a) In the Schedules the relevant Articles are Arts. (i) and (iii) of Schedule I, Art (i) is "plaint or memorandum of appeal (not otherwise provided for in this Act) or of cross objections presented to any Civil or Revenue Court when the amount of the value of the subject matter in dispute does not exceed. . . . . . . . " article (3) reads: "plaint, application or petition (including memorandum of appeal), to set aside or modify any award otherwise than under the Arbitration Act, 1940, a fee on the amount or value of the award sought to be set aside or modified, according to the scale prescribed under Article 1. " in my referring judgment I have said that Article (i) would have no application because S. 7 is a specific provision laying down the quantum of Court-fees. However, on a reconsideration of the matter and the authorities cited before us we hold that S. 7 is a computing section and the charging provisions are contained in the Schedules. Unfortunate as it may seem, in its anxiety to see that there is no escape from the payment of court-fees the legislature has made in many cases overlapping provisions. Article (1) is a general article, which does not apply if there is any other provision in the Act. We have held in First Appeal No. 15 of 1966 and Nos. 114 to 119 and 301 to 307 of 1965 that in the case of an appeal from an award made by an arbitrator appointed under S. 8 of Requisitioning and Acquisition of Immoveable Property Act (Act XXX of 1950) Article 3 applies. In the case of an appeal under the Land Acquisition Act, however, we do not think that Art. 3 can apply for the reasons following.

(3.) IN order that Art. 3 should apply the appeal must be against an award or in a finding (sic) to set aside an "award" in its technical sense which means the decision of an arbitrator. Though a decision under the Land Acquisition Act is called an award, it is not strictly an award. The determination of the Land Acquisition Officer is really an offer by him on behalf of the Government. He is not an arbitrator at all. He is merely an officer of the Government. The Bombay Amendment which requires him to submit his decision to the Government for approval before publishing the same, the Government having a right to direct modification makes it the more administrative. The offer is binding only the Government, vide Gangadas Mulji v. Haji Ali Mahomed Jalal Saji 18 Bom LR 826= (AIR 1917 Bom 196 ). It is true that the decision of the Court deciding the reference is described as an award. Even so, the Court does not function as an arbitrator at all. The reference under S. 18 is to the Court and the decision is that of the Court and is subject to all incidents of a proceeding in it. It appears, therefore, that the word "award" in the Land Acquisition Act would carry its ordinary sense Article 3, therefore, cannot apply.